Wyatt Employment Law Report


Stay Cool: Preventing Heat Illness in the Workplace

By Julie Laemmle

breathing-apparatus-dangerous-emergency-36031Heat-related hazards can affect a variety of workers and workplaces.  Without proper employer and employee precautions, exposure to heat can lead to worker injuries, diseases and fatalities; reduced productivity; and Occupational Safety and Health Administration (“OSHA”) citations and penalties.  To minimize any health or business risks, employers should be properly educated on the dangers of occupational heat exposure, understand their responsibilities and take appropriate steps to protect workers.

Heat-related illnesses include heat stroke, heat exhaustion, heat cramps, heat rash, heat fatigue and fainting.  Further, all of these illnesses can progress to much more serious conditions and could even lead to death.  Other heat-related risks Continue reading


2 Comments

Can Your Employees Bring Firearms to Work?

By Julie Laemmle

no gunsGuns-at-work laws generally limit a private employer’s ability to prohibit its employees from bringing concealed firearms to the workplace.  These laws are state-specific, as there is currently no federal law that regulates weapons at private workplaces.

States that have statutory guns-at-work laws covering private employers include: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Utah, and Wisconsin.

States that do not have statutory guns-at-work laws covering private employers include: California, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maryland, Massachusetts, Michigan, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, Virginia, Washington, West Virginia, and Wyoming.

What do guns-at-work laws do?  Guns-at-work laws serve Continue reading


Leave a comment

Do Your Severance Agreements Violate Federal Law?

By Michelle Wyrick

Resume near laptop --- Image by © Kate Kunz/Corbis

In light of the enforcement positions taken recently by the Securities and Exchange Commission (“SEC”) and the Occupational Safety and Health Administration (“OSHA”), which administer several whistleblower statutes, employers (and especially publicly-traded companies) should review the release provisions in their severance agreements and update them if needed.

For many years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that employers may not require employees who sign severance and release agreements to waive their rights to file charges with the EEOC or to participate in EEOC investigations.  The EEOC, however, has permitted employers to require employees to waive any right to monetary recovery in connection with any EEOC charges filed.  See EEOC Enforcement Guidance Non-Waivable Employee Rights under Equal Employment Opportunity Commission (EEOC) Enforced Statutes.

Now, the SEC has taken a more restrictive position.  Last month, the SEC fined two companies for using severance agreements that restricted Continue reading


Leave a comment

Occupational Safety & Health Administration Seeking Comments on Whistleblower & Anti-Retaliation Guidelines

By Douglas L. McSwain

On November 6, 2015, the Occupational Safety and Health Administration (“OSHA”) issued a news release that it will be accepting comments from the public on a draft document entitled, Best Practices for Protecting Whistleblowers and Preventing and Addressing Retaliation.  Comments will be accepted by OSHA until January 19, 2016.

The guidelines in this draft document are well worth reading for all employers.  They are generalized enough that they provide a good internal prevention program for avoiding litigation, and even if litigation is brought based on an employer’s alleged retaliation, their implementation could supply employers a good litigation defense to defeat an employee’s claim (assuming, of course, the employer has adopted these “best practices”).

The Department of Labor (“DOL”), of which OSHA is a branch, is increasingly becoming the governmental agency before whom employers are brought for retaliation claims arising out of any number of areas of law governing the employment relationship.  Not just complaints regarding workplace health Continue reading


Leave a comment

OSHA 300 Form Must be Posted by February 1, 2014 For Many Employers

By Edwin S. Hopson

It is that time of year again!

Most employers, with some exceptions (such as those with 10 or fewer employees during all of the previous year), must post their OSHA 300 log from February 1, 2014 to April 30, 2014 “in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the posted annual summary is not altered, defaced or covered by other material,” per OSHA regulations.

Injury and illness recordkeeping forms must be maintained on a calendar year basis.  In addition, they must be retained for 5 years at the establishment and must be available for inspection by representatives of OSHA, or appropriate state agency, which in Kentucky is the Kentucky OSH Program. To review the industries/establishments that are exempt from having to even fill out the form take a look at:

SIC Code

Industry

525

Hardware Stores

542

Meat and Fish Markets

544

Candy, Nut, and Confectionery Stores

545

Dairy Products Stores

546

Retail Bakeries

549

Miscellaneous Food Stores

551

New and Used Car Dealers

552

Used Car Dealers

554

Gasoline Service Stations

557

Motorcycle Dealers

56

Apparel and Accessory Stores

573

Radio, Television, & Computer Stores

58

Eating and Drinking Places

591

Drug Stores and Proprietary Stores

592

Liquor Stores

594

Miscellaneous Shopping Goods Stores

599

Retail Stores, Not Elsewhere Classified

60

Depository Institutions (banks & savings institutions)

61

Nondepository Institutions(credit institutions)

62

Security and Commodity Brokers

63

Insurance Carriers

64

Insurance Agents, Brokers, & Services

653

Real Estate Agents and Managers

654

Title Abstract Offices

67

Holding and Other Investment Offices

722

Photographic Studios, Portrait

723

Beauty Shops

724

Barber Shops

725

Shoe Repair and Shoeshine Parlors

726

Funeral Service and Crematories

729

Miscellaneous Personal Services

731

Advertising Services

732

Credit Reporting and Collection Services

733

Mailing, Reproduction, Stenographic Services

737

Computer and Data Processing Services

738

Miscellaneous Business Services

764

Reupholstery and Furniture Repair

78

Motion Picture

791

Dance Studios, Schools, and Halls

792

Producers, Orchestras, Entertainers

793

Bowling Centers

801

Offices & Clinics Of Medical Doctors

802

Offices and Clinics Of Dentists

803

Offices Of Osteopathic Physicians

804

Offices Of Other Health Practitioners

807

Medical and Dental Laboratories

809

Health and Allied Services,Not Elsewhere Classified

81

Legal Services

82

Educational Services (schools, colleges,universities and libraries)

832

Individual and Family Services

835

Child Day Care Services

839

Social Services, Not Elsewhere Classified

841

Museums and Art Galleries

86

Membership Organizations

87

899

Engineering, Accounting, Research,Management, and Related Services

Services, not elsewhere classified


Leave a comment

Whistleblowers Can Now File Complaints Online With OSHA

By Edwin S. Hopson

The U.S. Department of Labor’s Occupational Safety and Health Administration recently announced that whistleblowers covered by any one of 22 statutes administered by OSHA can now file complaints with the agency online.

“The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential protections,” said OSHA Director Dr. David Michaels in an agency press release. “Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA.”

Currently, employees can make complaints to OSHA by filing a written complaint or by calling the agency’s 800 number or by calling an OSHA regional or area office. With this change, employees can now electronically submit a whistleblower complaint to OSHA by visiting www.osha.gov/whistleblower/WBComplaint.html.

The new online form prompts the worker to include basic whistleblower complaint information so they can be easily contacted for follow-up. Complaints are automatically routed to the appropriate regional whistleblower investigators. In addition, the complaint form can also be downloaded and submitted to the agency in hard-copy format by fax, mail or hand-delivery. The paper version is identical to the electronic version and requests the same information necessary to initiate a whistleblower investigation.

The whistleblower provisions of 22 statutes protect employees who report violations of various securities laws, trucking, airline, nuclear power, pipeline, environmental, rail, public transportation, workplace safety and health, and consumer protection laws.


Leave a comment

OSHA Issues Proposed Rule Requiring Employers to File Information from OSHA Logs Some of Which Will Be Made Public

By George J. Miller

On November 7, 2013, OSHA issued a proposed regulation that would significantly amend the regulation regarding the annual OSHA injury and illness survey. 

The most significant aspect of the proposed change is a provision stating that OSHA intends to make the data it collects public, subject to restrictions imposed by the Freedom of Information Act and the Privacy Act.

Other requirements are:

–Companies with 250 or more employees must electronically submit to OSHA or OSHA’s designee, on a quarterly basis, all information from the records that they keep under Part 1904.  This information includes the individual entries on the OSHA Form 300 and the information entered on each OSHA Form 301.  The summary data from OSHA Form 300A will be submitted annually. 

–Employers with 20 or more employees in designated industries must electronically submit the information from the OSHA summary form (Form 300A) to OSHA or OSHA’s designee, on an annual basis.

–All employers who receive a notification from OSHA must submit information from their Part 1904 injury and illness records electronically to OSHA, for the time period and at the intervals specified by the notification. Employers will not have to submit injury and illness data to OSHA under this section unless they are notified to do so.  OSHA will announce individual data collections through publication in the Federal Register and the OSHA newsletter and through announcements on its Web site. Establishments that are required to submit the data will also be notified by mail.  Each notification will be part of an individual data collection designed to obtain specified injury and illness data from a specified group of employers at a specified time interval. 

The public will have through February 6, 2014, to submit written comments on the proposed new rule.  On January 9, 2014, OSHA will hold a public meeting on the proposed rule in Washington, D.C.